Local referenda; the extraordinary mode of proceedings
on the protection of personal interests in a referendum campaign SK 16/14
“The introduction of a 24-hour time-limit for the consideration of an application by a court in non-contentious proceedings is: indispensable, effective and proportionate, since the goal of proceedings that are being carried out remains in appropriate proportion to restrictions arising from the pace of the court’s activities. By contrast, a 24-hour time-limit for introducing an appeal against a decision issued by a court of the first instance as well as the same time-limit for determining cases before the court of the second instance does not infringe the right to a proper court procedure,” stated the Constitutional Tribunal.
On 12 May 2016 at 10 a.m., the Constitutional Tribunal publicly delivered a judgment, issued at a sitting in camera, on a constitutional complaint filed by Z.S. with regard to local referenda (the exceptional course of proceedings on the protection of personal interests in a referendum campaign).
In its judgment of 11 May 2016, the Constitutional Tribunal adjudicated that:
1) Article 35(2) of the Local Referenda Act of 15 September 2000 is consistent with Article 45(1) in conjunction with Article 31(3) of the Constitution;
2) Article 35(3) of the Act referred to in point 1 is consistent with Article 45(1) in conjunction with Article 78 and Article 31(3) of the Constitution.
Moreover, as to the remainder, the Constitutional Tribunal decided to discontinue proceedings.
There was one dissenting opinion submitted to the judgment by Judge Piotr Pszczółkowski.
Taking into account the previous jurisprudence of the Constitutional Tribunal which concerned the right to a fair trial, specified in Article 45(1) of the Constitution, the Tribunal held that the challenged provisions of the Local Referenda Act guarantee that participants will have access to a fair trial.
What requires consideration is, however, the issue whether Article 35(2) and (3) of the Local Referenda Act, insofar as it specifies dates for considering cases referred to in Article 35(1) of the said Act by courts at first and second instance, is consistent with the right to a proper court procedure, derived from Article 45(1) of the Constitution, in accordance with the requirements of fairness and transparency, which is referred to in the jurisprudence of courts as the principle of procedural justice.
In the opinion of the Constitutional Tribunal, the consideration of the pace of proceedings – which constitutes the basic value that should be consistently implemented in every trial – may not overshadow the party’s right to defence, and lead to the deprivation or restriction of the said right, as well as limit the principle of objective truth. The pace of proceedings as a value of the court’s application of law is not an overriding value in relation to the principle of objective truth. When determining a 24-hour time-limit for the consideration of a case, the legislator is obliged to take account of the above-indicated purposes of the regulation, justified by the principle of a democratic state ruled by law as well as the rights and freedoms of persons, and to take account of considerations arising from the pace of proceedings and substantive truth.
Article 35(2) of the Local Referenda Act guarantees the right of access to a court as well as the right to a court ruling, and thus, in this situation, one may not speak of the violation of the essence of the right to a fair trial, but merely about a possible restriction of one of the elements of that right, i.e. the right to a proper court procedure, due to a short time-limit for the consideration of an application by a court.
When analysing whether the introduced restrictions are consistent with constitutional standards, one should analyse them in terms of their indispensability, effectiveness and proportionality (Art. 31(3) of the Constitution). Although in non-contentious proceedings there is no obligation to hold a hearing, yet the legislator, in the challenged provisions, decided that despite the short time-limit cases should be considered at a hearing.
Thus, a participant in proceedings has a possibility of being heard, and reasons for a determination are revealed to him/her in a consistent and predictable procedure. For these reasons, in the Tribunal’s opinion, one may not speak of an infringement of a fair procedure. The short time-limit for the consideration of a case is to discipline not only participants in proceedings, but also a court. A procedure devised in this way is not only burdensome, but it also poses a greater threat to proper search for the objective truth by a court. For that reason, despite the fast pace of proceedings, the legislator has not resigned from an appellate procedure which allows for a potential verification of the findings of a court of first instance.
As a side remark, the Tribunal drew attention to the fact that the introduction of the challenged solution does not give any bases for determining the lack of diligence in activities undertaken in the course of a case by a court.
In the light of the above, the Tribunal stated that the introduction of 24-hour time-limit for considering an application by a court in non-contentious proceedings is: indispensable for the proper course of a referendum campaign; effective – since this makes it possible to issue a judgment before the day of election; as well as proportionate – since the goal of relevant proceedings remains in appropriate proportion to restrictions arising from the pace of the court’s activities.
The complainant also challenged the pace of proceedings conducted in accordance with an appellate procedure. In her opinion, an excessively short time-limit for filing an appeal makes it impossible to realise the right to file an appeal, and thus it infringes the right to a fair trial.
In the view of the Constitutional Tribunal, a 24-hour time-limit for filing an appeal against a decision of a court of first instance as well as the same time-limit for determining a case by a court of second instance, although it may limit the court’s proper search for objective truth, it does not infringe the right to a proper court procedure. Indeed, the mode of appellate proceedings remains in appropriate proportion to restrictions arising from the fast pace of legal steps taken by a participant in proceedings and the court.
The presiding judge of the adjudicating bench was Judge Sławomira Wronkowska-Jaśkiewicz, and the judge rapporteur was Judge Andrzej Wróbel.